The time had finally come for Diane Keith to tell a judge about her murdered sister. On December 6, the Glendale resident stood before Maricopa County Superior Court Judge Armando de Leon and collected her thoughts.
At hand was the sentencing of John Anthony Davis, a 22-year-old man involved in the May 1994 murder of Dariel Overby.
Davis was one of a carload of young men who randomly targeted Dariel, 32, and her husband Steve as the couple returned to their Glendale home from a night out with friends. Without provocation, court testimony showed, Davis' pal, 16-year-old Jay Flowers, had shot Dariel twice with an assault rifle.
Exceptionally callous and senseless, the murder captured the attention of local media at the time.
Davis' plea bargain to a charge of conspiring to commit armed robbery--the aborted theft of the Overbys' car--called for a 7.5-year prison sentence. In return, he was compelled to testify against Flowers and another of the accused youngsters. Flowers was tried as an adult, convicted and sentenced to life in prison.
Diane Keith and her family knew such plea deals are a fact of life in the criminal-justice system: Her father, Bernie Truter, retired from the Phoenix Police Department after serving for 20 years and had experienced that reality firsthand. But they believed Davis' plea bargain was unjust, and wanted to tell Judge de Leon why.
Under Arizona law, de Leon had to consider the impact of Dariel Overby's murder on her survivors before he imposed sentence.
But the long-awaited moment--"In a sense, it was the last thing I could do for my big sister," Diane Keith says--became memorable to her and her family more for de Leon's attitude and actions than anything else.
"He could have humored me, appeased me," she says. "But it was clear he didn't give a rat's you-know-what about my sister."
A message machine at de Leon's downtown Phoenix office says he and his staff are on vacation until January 2, and the judge did not return calls seeking comment. But a transcript of the remarkable December 6 hearing bears out Keith's analysis.
It started benignly, as de Leon announced he'd read the many letters sent on behalf of Dariel Overby and those sent in support of John Davis.
"With the amount of work this court has to do, it took a lot of extra time and effort to get prepared for today's calendar," said the judge, who has been on the bench since 1983. "I just finished a homicide case Wednesday--a capital case--and it's a lot of burden to the court to have so many letters. But we assure you that each and every letter is read thoroughly. So if you have something that's already contained in the letter, please don't repeat yourself unless you want to summarize."
Keith was the first of three family members who planned to speak.
"This is the individual whose life . . ." she began, attempting to hand de Leon a photograph of her slain sister. The judge declined to take it, instructing her to hand the photo to prosecutor Bill Clayton, who in turn would give it to him.
". . . whose life is worth seven and a half years of his [Davis'] life," Keith continued, her composure cracking. "She lost at least 35 years of her life and he can walk away from it in seven years. That is how this system views my sister's life."
"Thank you," de Leon said, as soon as she paused for a moment.
"I'm not done."
"My sister's life is valuable to me, it's valuable to them," Keith said, pointing to relatives seated in the gallery.
"Did you state your name for the record?"
"Yes, I did."
Keith spent another 30 seconds or so listing her objections to Davis' plea bargain, then paused again.
"Thank you very much," de Leon said tersely.
Keith: "I guess you don't want to hear anything else I have to say."
de Leon: "I can't be here all day listening to you."
Keith: "I've lived this nightmare for two and a half years, and I'm going to live it for the rest of my life."
de Leon: "And you've had an opportunity to address the court. Okay. Next person, please."
Diane Keith's mother, Linda Hartman, and her father, Bernie Truter, had seen and heard enough. They got up and left the courtroom.
"I guess they don't want to be heard?" de Leon asked prosecutor Clayton. "Very well."
"They do want to be heard, Your Honor," said Clayton, responding politely, but firmly, "but they've expressed to me that they would like to be treated with some respect . . ."
The transcript reflects what happened next.
"The Court: 'Let me stop you for a moment. There's been no disrespect to anybody. I don't want the record to reflect that this judge is in any way disrespectful.'"
"A Voice: 'Yes, you are.'" (The voice was Bernie Truter's current wife, Margie, who had stayed behind after her husband left.)
"The Court: 'Madam, if you're not in control, I'll have to ask you to leave the courtroom.'"
"A Voice: 'I'm leaving.'"
"The Court: 'I have a responsibility to control the courtroom.'"
"A Voice: 'I know.'"
Margie Truter, too, then walked out of Judge de Leon's courtroom.
"Counsel, I don't like those words from you that there's been any disrespect," the judge told Clayton, a veteran prosecutor.
"It is perceived by the victim's family as disrespect, Your Honor, simply because . . ."
"You've not consulted with the victim's family. They've just simply walked out."
"I have consulted with them for three years, Your Honor, and they have been cut off by more than one court when they have tried to speak and [were] interrupted several times. . . ."
Diane Keith remained in the courtroom after her ordeal:
"I wanted that judge to know how upset I was. We didn't ask to be put into this system, but I wasn't going to let him run me out of there. I was kind of in a state of shock."
Glendale police detective Tom Clayton (no relation to prosecutor Bill Clayton) observed the courtroom exchange with deep disappointment.
"I felt bad for the family," says Clayton, the lead detective on the Overby murder case. "This is the only chance they have to address the court and to indirectly address the defendant about how they feel. The judge just simply cut them off and wasn't empathetic to their plight. That's not how things should be."
The hearing continued without further incident. But de Leon postponed Davis' sentencing until mid-January after legal problems with the plea bargain surfaced.
Dariel Overby's family simmered for a day or two, then acted. On December 10, Bernie Truter mailed a letter to the state Commission on Judicial Conduct.
Truter first praised the other judges who had presided over the cases of John Davis' co-defendants. Then he got to the point.
"I realize that Judge de Leon has the right to accept or reject the plea agreement," the retired cop wrote, "and that is not an issue with regards to my complaint. The issue is the rudeness, disrespect and lack of dignity which my family endured in his court.
"A judge is to hear courteously, answer wisely, consider soberly and decide impartially. We have the right to be treated with fairness, respect and dignity and to be free from intimidation, harassment or abuse."
Truter and two other family members also wrote to Judge Ronald Reinstein, who heads the county's criminal division.
Reinstein says he responded by speaking on the phone with the aggrieved family members after discussing the matter with de Leon.
"I expressed my concerns to the people who contacted me," he says, measuring each word. "All of us as judges have to be sensitive to the rights of victims, at all times."
Reinstein says he has reassigned the Davis case to another judge.
Diane Keith says she hasn't been able to put the unfortunate courtroom episode behind her:
"If something like what happened to my sister happened to one of Judge de Leon's own loved ones, I know he'd want some common courtesy if he was standing where I was. That's all we were asking. But we didn't get it.
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